What is reasonable?

Sam Dickinson, 13th September, 2016

Most employers will be aware that if a disabled person is placed at a substantial disadvantage in the workplace there is a duty to make reasonable adjustments to alleviate that disadvantage but the question of what is and isn’t reasonable is often a matter of dispute.

A person is disabled if they have a physical or mental impairment that has a substantial, adverse and long term effect on their ability to carry out normal day to day activities. Some conditions are deemed disabilities but in most instances the question of disability is not necessarily answered by looking at the label given to a particular impairment or condition but instead by looking at the effect of that impairment or condition.

While most discrimination legislation is concerned with treating everybody the same regardless as to gender, race or sexual orientation (for example), disability discrimination legislation goes a step further by requiring employers to take steps that might seemingly give a disabled person an advantage in the workplace over a non disabled person. This is most apparent when it comes to the duty to make reasonable adjustments.

The range of possible adjustments that could be made is vast. A reasonable adjustment could involve making physical adjustments to premises such as widening a doorway or installing a lift, providing specialist equipment such as an orthopaedic chair or voice activated software, allocating some of a disabled person’s duties to another employee, altering a disabled person’s working hours, conditions or place of work or adjusting the trigger points in an attendance policy so that a disabled person isn’t penalised in respect of disability related absences.

What is reasonable will always depend upon the circumstances of the individual employee, the work that they undertake and the business of the employer.

It is settled law that an employer can’t use the fact of increased costs as justification alone for not making reasonable adjustments; of course an employer can’t discriminate against a disabled person because it is cheaper than not discriminating against them!

The Court of Appeal in 2007 said that it would only rarely be a reasonable adjustment to give higher (or more) sick pay to a disabled employee than a non-disabled employee. The duty to make reasonable adjustments is designed to enable disabled people to play a full part in the world of work, not to treat them as "objects of charity" (which may act as a disincentive to return to work).

If however a disabled employee is absent from the workplace because the employer has failed to make reasonable adjustments there might be a duty on that employer to extend the period of time over which the employee receives sick pay.

Take for example a disabled employee with a sight impairment who is unable to work until her employer provides a workspace with better light and/or written materials in larger print or braille.

If the employer fails to make those adjustments (presuming they are reasonable in all the circumstances) and as a result she remains on sick leave exhausting her contractual entitlement to sick pay, it is likely that a Tribunal would decide that extending the usual period of sick pay was a (further) adjustment that the employer should make.

In a recent Employment Appeal Tribunal (EAT) case it was held that there was no reason in principle why the duty to make reasonable adjustments should exclude a requirement to protect an employee’s pay when they move to another role as a reasonable adjustment - in conjunction with other measures to counter the employee’s disadvantage through disability.

The question remains whether it is reasonable, in all of the material circumstances, for the employer to take that step.

Pay protection was said to be no more than another form of cost for an employer, analogous to the cost of providing extra training or support and the duty to make reasonable adjustments plainly encompasses an element of cost to the employer so why should the cost to the employer of pay protection be any different.

The EAT said while it would not be an everyday event for a tribunal to conclude that long-term pay protection was required, it was possible to envisage cases where this may be a reasonable adjustment for an employer to make.

It was also noted that such an adjustment may no longer be reasonable if the employer’s circumstances changed, for example if role were to be made redundant or the financial situation of the company changed.

The question of what is reasonable will always vary from one case to another but the lessons to learn from this most recent case is that employers have to bear in mind that protecting an employee’s pay is yet another option to consider.

The objective of the legislation is to assist a disabled employee back to work (or keep them at work) and the duty to make reasonable adjustments should always be considered with this objective in mind.

If you need advice on reasonable adjustments or general advice as to the law relating to discrimination please contact Samantha Dickinson or Martin Williams on 01273 775533.